Hernandez v. Gonzales

MEMORANDUM ** This is a petition for review of the Board of Immigration Appeals’ (“BIA”) order denying petitioner’s motion to reopen removal proceedings and rescind the removal order entered in absentia. The regulations provide that an in absentia order may be rescinded only “upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances.” See 8 U.S.C. § 1229a(b)(5)(C). “The term ‘exceptional circumstances’ refers to exceptional circumstances (such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the *386 alien.” See 8 U.S.C. § 1229a(e)(l). Therefore, the BIA did not abuse its discretion in denying petitioner’s motion to reopen when petitioner’s explanation for her absence did not include exceptional circumstances. See id.; Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004). Respondent’s motion for summary disposition is granted because the questions raised by this petition for review are so insubstantial as not to require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir.1982) (per curiam). Accordingly, this petition for review is denied. All other pending motions are denied as moot. The temporary stay of removal confirmed by Ninth Circuit General Order 6.4(e) shall continue in effect until issuance of the mandate. PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.